2015 Sports Law Year-In-Review

By Lee Green, J.D. on December 22, 2015 hst Print

Legal Issues in Athletics Administration

Throughout 2015, lawsuits were filed, court cases were decided, legislation was enacted, administrative agency rulings were released, state athletic association regulations were issued and other legal pronouncements were handed down impacting school sports programs. In each instance, the principles established illustrate the importance for school administrators and athletics personnel of understanding contemporary issues in sports law and proactively applying that knowledge to policy development and day-to-day management of athletics programs.

Liability for Sports Injuries

In the past 12 months, rulings were handed down in numerous cases demonstrating the need for athletics personnel to understand the legal duties imposed on them by courts related to supervision, technique instruction, warnings, safe playing environment, protective equipment, evaluation of injuries, return-to-action protocols, immediate medical response, emergency medical response planning and safe transportation.

In June, a $50,000 settlement was agreed to in Palestri v. Wagner High School (NY), a case where a high school football player suffered a broken jaw requiring two surgeries when he was attacked in an unsupervised locker room after a weight-training session. The suit, which also named as defendants the New York City Department of Education, Wagner’s athletics director and several of the school’s football coaches, alleged a lack of reasonable care to fulfill the duty of “general supervision” – the legal responsibility to supervise athletes for a reasonable period of time before an athletics activity (game, practice or conditioning session) commences and for a reasonable period of time after the activity ends. The standard of practice illustrated by the case, similar to many similar lawsuits in recent years, is that unsupervised locker rooms are one of the most common athletics environs in which injuries, fights, hazing, sexual assaults and other malfeasance occurs and related to which schools and athletics personnel are held liable to student-athletes.

In August, five high school wrestlers filed a lawsuit, Lucia, et al v. Rocky Point Union Free School District (NY), seeking $12 million for Methicillin Resistant Staphylococcus Aureus (MRSA) bacterial infections contracted from a sodden wrestling mat that allegedly had not been cleaned for seven years. MRSA, resistant to treatment by most antibiotics, is a potentially lethal ailment that resulted in the Rocky Point wrestlers having to undergo multiple surgeries to remove infected tissue and endure weeks of intravenous antibiotic therapies. According to data from the Centers for Disease Control (CDC), approximately 19,000 people die from MRSA infections each year. The pleadings in the lawsuit assert negligent failure to fulfill the duties to provide a safe playing environment, to monitor athletes for injuries and incapacities, to provide adequate immediate medical assistance, and to develop an effective emergency medical response plan.

In October, summary judgment was issued in favor of a school in another MRSA case, McWilliams v. Newport Central Catholic High School (KY), in which a high school football player was stricken with the infection after playing in a game on a field that had several months before been flooded with raw sewage following rainstorms that caused sewer systems to overflow. The public school district that owned and leased the field to the private school for which the plaintiff played had the field professionally cleaned after the incident by a firm specializing in sanitizing athletics environments and in its decision, the court seemed satisfied that by using a professional cleaning firm, the school had exercised reasonable care to provide a safe playing environment and protect the health and well-being of the athletes using the field.

In August, a suit was filed in the state of Washington, Woods v. Auburn School District, seeking $2 million from the district and athletics personnel for life-threatening injuries to a high basketball player who crashed through wired glass doors located just a few feet beyond the baseline of the court. The victim sustained a brachial artery laceration and multiple other deep cuts on his dominant left arm. The pleadings in the case allege a violation of the duty to provide a safe playing environment through the school’s failure to comply with International Building Codes and local safe building requirements banning wired glass in gymnasiums and athletics facilities. The case petition stated, “in direct violation of Washington law, federal and state standards, and common safety practices, the Auburn School District installed and kept dangerous wired glass in the doors to the gymnasium where it was foreseeable that basketball players, traveling at high speed, could come into contact with the wired glass causing it to shatter and cause severe, debilitating and potentially life-altering injuries.”

In May, a lawsuit was filed by the family of a 16-year-old basketball player against a school that leased its gymnasium to be used for an AAU tournament during which the victim collapsed and later died. The pleadings in Cullum v. Riverside-Brookfield Township School District 208 (IL) state that after the player fell to the floor, an emergency room physician and a nurse who separately were in attendance to watch the game came out of the crowd to render assistance. They immediately began performing CPR, and requested an Automated External Defibrillator (AED), but one was not available on-site. The suit asserts the school failed to develop and implement an emergency medical response plan for athletics events and that by failing to have an AED available, the school also failed to fulfill its duty to provide a safe playing environment and to provide adequate immediate medical assistance. The filing also alleges that the school failed to comply with an Illinois state law, the Physical Fitness Facility Medical Emergency Preparedness Act.

In July, in Ludman v. Davenport Assumption High School (IA), a jury awarded $1.5 million to a former high school baseball player whose skull was fractured when he was hit by a line drive foul ball while standing in his team’s dugout during a game. The injury required him to relearn how to walk and talk and left him with permanent brain injuries making him susceptible to seizures. The jury found that by erecting inadequate screening around the dugouts, the school breached its duty to provide a safe playing environment. Applying the doctrine of comparative negligence and finding that the victim was 30% at fault for not being more attentive to the possibility of foul balls being hit into the dugout, the jury cut his award to $1.05 million.

Concussions

In October, in Pierscionek v. Illinois High School Association, a Cook County Court granted a motion to dismiss a class action lawsuit against the IHSA seeking additional concussions policy protections for players such as the presence of medical personnel at all high school practices at all levels across the state, including varsity, junior varsity, sophomore and freshmen teams; mandatory concussion baseline testing for all student-athletes; and a medical monitoring fund that would have paid for additional traumatic brain injury screening and treatment for former student-athletes. The court concluded that the IHSA has acted with reasonable care in developing and implementing concussion protocols by establishing policies and procedures consistent with the Illinois concussion statute and prevailing medical standards. The judge stated in his ruling, “it is clear to this court that the IHSA has acted to protect students in this state.”

Also in October, a $2 million settlement was agreed to in McNamee v. Hillsborough County School Board (FL), a case involving a 16-year-old, high school football player who sustained a head injury during practice while not wearing a helmet, allegedly received only a cursory evaluation by a coach and athletic trainer, and was reputedly left alone in a training room for a half-hour before being allowed to drive himself home, at which time his parents immediately transported him to a hospital emergency room where he was diagnosed with a fractured skull and a severe concussion. The lawsuit alleged negligent supervision, lack of an emergency medical response plan, inadequate immediate medical response, and failure to comply with a Florida High School Athletic Association bylaw mandating liability insurance coverage for student-athletes. The statutory limit in Florida on personal injury payouts by state agencies such as school districts is $300,000, but the school board has agreed to support the plaintiff’s claims request to the Florida Legislature for authorization for the school district to pay the remaining $1.7 million of the agreed-to settlement amount. The settlement also included the implementation of a new set of concussion policies and procedures by the district, to be titled the McNamee Protocol, that are consistent with the Florida Concussion Law and prevailing medical standards for traumatic brain injuries. Furthermore, the school board will provide an additional $1 million of liability insurance coverage for every high school athlete beginning in the 2016-17 school year.

In May, in Strough v. Bedford School District (IA), a jury awarded $990,000 to a former high school football player who was allowed to continue practicing and playing after suffering a concussion and who then suffered permanent brain damage from subsequent “Second Impact Syndrome” head injuries. The case is notable for the jury’s finding of negligence against not just the district and its athletics personnel, but also against a school nurse to whom the injured player was referred, but who failed to diagnose the concussion or to refer him to a physician for a follow-up evaluation that might have identified the true extent of his head injuries, so severe that he had to eventually be placed into a medically-induced coma, undergo surgery to relieve the swelling of his brain and remove a blood clot that had formed near his brain stem, and has left him confined to a wheelchair.

Beginning in the fall of 2015, the Florida High School Athletic Association became the first governing body in the country to mandate that all high school athletes in all sports complete a course on concussions as a prerequisite to competing for their schools. The free online course, Concussion In Sports: What You Need To Know, was developed by the National Federation of State High School Associations, has been required by the FHSAA for all high school coaches in the state since the course was launched by the NFHS in 2010, and has now been completed nationwide by approximately 2.3 million athletics personnel. Requiring the course of student-athletes may serve as additional evidence that a state association or school district is exercising reasonable care with regard to educating athletes about the severity and long-term implications of concussions in order to deter athletes from concealing head injuries from their coaches and athletic trainers for misguided personal or team motives.

Following the enactment of Mississippi’s state concussion law in 2014, all 50 states and D.C. now have legislation mandating specific protocols for head injuries, with three tenets common to almost all of the statutes:1) immediate removal play is required when a student-athlete exhibits indicia of having sustained a concussion; 2) same-day return to action is prohibited; and 3) return to action is permitted only after the athlete has been cleared by a licensed medical professional (the definition of which varies wildly between state laws). Other common features of state concussion legislation is a requirement that coaches complete an education program such as the NFHS course and a mandate that student-athletes and parents be provided with concussion information materials.

The free, online NFHS concussion course may be viewed here and an extensive variety of free educational resources and videos about head injuries in sports are available through the Centers for Disease Control website at www.cdc.gov/headsup. Administrators and coaches should be familiar with the details of their state’s concussion statute; the full-text of each state law may be accessed through the National Conference of State Legislatures at www.ncsl.org/research/military-and-veterans-affairs/traumatic-brain-injury-legislation.aspx.

Title IX

An effective strategy for school and athletics administrators seeking to gain a better understanding of the application of Title IX to gender equity in their institutions’ sports programs is to read one federal court case opinion addressing the issue and one Office for Civil Rights (OCR) resolution agreement on the topic. The following are one of each – clearly and thoroughly written analyses setting forth the expectations of the federal judiciary and the OCR regarding Title IX and the precise steps that should be taken by any district to ensure compliance.

In 2015, in Ollier v. Sweetwater Union High School District, the district decided not to request an appeal before the U.S. Supreme Court of the September 2014 decision of the U.S. Court of Appeals for the Ninth Circuit upholding two previous lower court decisions against the district. The case originated with a dispute in 2006 over the inferiority of Castle Park (CA) High School’s softball facilities as compared to its baseball facilities and in a 2009 preliminary ruling, a U.S. District Court found the school to be in violation of Title IX’s “three-prong test” mandating equal sports participation opportunities for female students and in violation of Title IX’s prohibition on retaliation against those who lodge complaints about inequities (the softball team’s coach had been fired in response to his complaints about facility inadequacies).

In a 2012 decision, the lower federal court found the school to also be in violation of numerous requirements related to equal treatment of female student-athletes in the “other athletics benefits and opportunities” component of Title IX. The court found inequities for female student-athletes in 1) equipment, uniforms, supplies and storage; 2) locker rooms, practice facilities and competition facilities; 3) access to quality coaching; 4) publicity, marketing and media services; 5) scheduling of practices and games; 6) access to athletic training and medical services; 7) institutional and administrative support services; and 8) recruiting resources to encourage enrolled girls to participate in sports. The case is an instructive one for school and athletics administrators and provides a blueprint for the expectations of the federal courts with regard to Title IX compliance by scholastic sports programs. The full-text of the Court of Appeals’ decision in the Ollier case, including its extensive set of recommendations for Title IX compliance by high school athletics programs, is available at http://cdn.ca9.uscourts. gov/datastore/opinions/2014/09/19/12-56348.pdf.

In July 2015, the Chicago Public Schools entered into a resolution agreement with the U.S. Department of Education’s Office for Civil Rights (OCR), which had in 2010 initiated a Title IX compliance review of the athletics programs at the 98 district high schools. The OCR investigation found a widespread failure of the schools to satisfy Title IX’s “three-prong” test. Despite approximately 50%-50% male-female-enrollment district-wide, 58.7% of sports participation opportunities went to boys and only 41.3% went to girls, yielding a 17.4% shortfall in prong-one proportionality. And none of the schools could demonstrate a prong-two “history and continuing practice of program expansion” or a prong-three “full and effective accommodation of the athletic interests and abilities of the female enrollment.” The resolution agreement establishes a timetable for the district to remedy its Title IX problems over the next four years and, in the same way the Ollier case is instructive regarding the expectations of the federal courts regarding Title IX, the Chicago settlement provides a blueprint regarding the expectations of the OCR regarding Title IX. The full-text of the resolution agreement is available at www2.ed.gov/about/offices/list/ocr/docs/investigations/0511 1034.html.

Constitutional Law: Freedom of Speech & Social Media

Courts continue to struggle with the issue whether schools have the authority to sanction students or student-athletes for inappropriate, off-campus postings on social media websites in violation of school or athletics codes of conduct. Since 2011, seven U.S. Court of Appeals decisions and more than a dozen U.S. District Court rulings have addressed the issue, with the common thread running through the cases being that schools may sanction such communications, but only if the postings create or could be reasonably forecast to create a substantial disruption at school, if the postings constitute bullying or harassment against other students or school officials, or if the postings manifest a “true threat” of violence, one that would be reasonably interpreted by the reader as manifesting an intent by the poster to carry out the threatened actions. Courts have also consistently ruled that school social media policies, in order to survive judicial scrutiny, must be precisely-written and narrowly-tailored to prohibit only those forms of student speech that the school is constitutionally authorized to sanction.

In August, in Bell v. Itawamba County School Board (MS), the U.S. Fifth Circuit Court of Appeals, sitting en banc (all 15 active judges participating), reversed a 2014 ruling by a Fifth Circuit three-judge panel that the district violated the free speech rights of a student expelled from his extracurricular activities and suspended from school for posting online a video he created featuring a rap song that accused two coaches at Itawamba Agricultural High School of inappropriate conduct with female students. The 2014 decision found that the school did not have the authority to sanction the student because the video was produced off school property, posted online from the student’s home, did not use school resources (neither its computer hardware nor software) and was never accessed by any students on school property. However, in its 2015 en banc rehearing, the Court of Appeals upheld the district’s actions and ruled that it did not violate the student’s free speech rights based upon the “substantial disruption” standard established in the U.S. Supreme Court’s 1969 decision in Tinker v. Des Moines School District. In the 2015 Bell decision, the court held that intimidating and harassing language directed at school officials could reasonably be forecast to cause a substantial disruption on school property and that despite the fact that the postings took place off school property, the school had the authority to punish the offender.

Constitutional Law: Freedom of Religion

In September, the Texas Attorney General filed a brief with the Texas Supreme Court requesting that the state high court agree to hear the appeal of an October 2014 ruling by a state court of appeals in Matthews v. Kountze Independent School District, a case dealing with the right of high school cheerleaders to display religious messages on banners at their public school’s athletic events. The dispute arose in September 2012 when the district, concerned that the display of Bible verses on run-through banners at high school football games violated the First Amendment’s Establishment Clause, prohibited the practice. Citing their free speech and free exercise of religion rights, the cheerleaders filed a lawsuit and a state trial court judge issued a temporary restraining order staying the implementation of the ban pending a full resolution of the case. In April 2013, the district changed its policy to allow such banners at school sports events and in May 2013, the same judge who had previously issued the temporary injunction ruled that the display of the banners was constitutionally permissible. The Kountze ISD then requested that a state appellate court clarify the district’s obligations regarding church-and-state issues, but in May 2014, the appellate court ruled that the issue was moot because of the district’s policy change. The cheerleaders, in order to eliminate the possibility of the policy being amended in the future in a manner that might limit their ability to display the religious messages, requested that the Texas Supreme Court hear the case and issue a definitive ruling on the free speech and free exercise of religion issues in the case. If the state high court agrees to hear their appeal, oral arguments and a ruling will likely be issued sometime during 2016.

Constitutional Law: Invasion of Privacy

In June, in a unique case of first impression, Long v. State of Texas, a state Court of Appeals overturned the conviction for violating a state anti-wiretapping statute of a school board member who sent her daughter into the girls basketball team’s locker room to surreptitiously record video and audio using an iPhone of the coach’s halftime speech. The school board official’s motive was to gather “evidence” incriminating the coach who admitted during the case that he had an intense style focusing on discipline and accountability. The board member’s daughter had quit the team because of the coach and after the official distributed the recordings to other board members in an effort to get the coach fired, the district reported the incident to the police, leading to the criminal conviction for violating the wiretapping statute. In overturning the official’s conviction, the court held that coaches do not have a reasonable expectation of privacy in their speeches to players, “regardless of where those speeches occur, because they are always subject to public dissemination and generally exposed to public view.” The court drew support for its decision by citing multiple similar rulings that teachers do not have a reasonable expectation of privacy in statements made to students in class and that the same logic should be applied to coaches in athletics settings.

Constitutional Law: Equal Protection & Transgender Students

The development of fair, practical and legally sufficient policies regarding the inclusion of transgender athletes in sports activities is one of the latest civil rights challenges facing sport governing bodies and educational institutions.

In April 2014, the U.S. Department of Education’s Office for Civil Rights issued an updated policy guidance clarifying that the civil rights guarantees in Title IX extend to all students, regardless of their sexual orientation or gender identity. The inclusion of transgender students in the new guidance reflects evolving legal standards nationwide, both through laws enacted by state legislatures and via policies implemented by state associations, regarding the protections against discrimination that must be accorded by schools to transgender students and student-athletes. The 53-page document, structured in a question-and-answer format, is available full-text at www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.

Hazing

Hazing continues to be a widespread problem in school athletics programs and one of the most highly litigated claims against districts and athletics personnel, with courts typically imposing liability either because of the failure to create an anti-hazing policy or for developing a policy that is substantively inadequate or ineffectively implemented.

In September, the Middlesex County (NJ) Prosecutor held a press conference to clarify the resolution of criminal charges against seven former football players at War Memorial High School in the Sayreville Public Schools related to an allegedly pervasive and long-standing tradition of hazing by upperclassmen against underclassmen, often involving acts constituting sexual assault and sexual battery, including sodomy. Originally charged with felony aggravated criminal sexual contact and criminal hazing pursuant to New Jersey’s anti-hazing state law, the perpetrators were eventually tried as juveniles in Family Court, with six of the seven either pleading guilty to lesser charges or being found guilty of lesser charges. One still awaits trial. All of those whose cases have been resolved received probation and none will be required to register as sex offenders, an option the prosecutor could have chosen to pursue given the nature of the hazing behaviors.

In April, the first “notice of intent” was filed to bring a civil suit against the district, claiming $2 million in damages suffered by one of the victims of sexual hazing against the school, and the athletics personnel involved in the situation, including the school’s director of athletics and the members of the football coaching staff. The issue in that suit and others likely to be filed related to the situation will involve resolution of the questions whether school personnel had “actual knowledge” of the tradition of hazing against underclass football players and whether those school officials exhibited “deliberate indifference” to preventing the hazing.

Also to be determined is whether the district had a strong and effective anti-hazing policy in place for its athletics programs and, if so, whether all athletics personnel were in-serviced regarding the policy, whether student-athletes and parents were educated about the policy and informed as to how and to whom hazing should be reported, whether substantive, ongoing efforts were made by athletics personnel to enforce the policy, whether adequate supervision was in place over all environments and situations where hazing might take place, and whether any athletics personnel were aware of the hazing behaviors but allowed them to continue from year-to-year in the interests of maintaining “team traditions.”

Despite the national media focus directed toward the Sayreville hazing scandal, it should be noted that similar hazing allegations surface numerous times each year at schools across the country. In 2015, hazing allegations were lodged involving the football team at Allendale-Fairfax High School (SC), the wrestling team at Provo High School (UT), the basketball team at Raton High School (NM), the football team at Juanita High School (WA), the cross country team at Shawnee Mission East High School (KS), the baseball team at Parkview High School (GA), the football team at Susan Wagner High School (NY), the soccer team at Walhalla High School (SC), the football team at Milton High School (VT), and the football team at Enterprise High School (CA) – just 10 examples of the more-than-75 incidents of hazing reported as having occurred in high school sports programs since the beginning of the year.

Sexual Harassment

On April 24, the OCR issued a new policy guidance clarifying the obligations of school districts to have systems and protocols in place to address sexual harassment in all programs – curricular and extracurricular – throughout K-12 schools, including athletics programs. Such procedures are mandated under Title IX. The OCR’s pronouncement reflects the increased level of concern in recent years about sexual harassment and sexual assaults on college campuses and requires the application to schools of the same Title IX standards as are being applied to the 100+ colleges and universities currently under investigation for their handling of complaints by students. The April 24 guidance emphasizes the obligation of every school district to designate a Title IX Coordinator to in-service school personnel about their responsibilities under the law and to educate students about their rights. The guidance is available full text at www2.ed.gov/about/offices/list/ocr/letters/colleague-201504-title-ix-coordinators.pdf.